From random security checks at airports to the use of risk assessment in sentencing, actuarial methods are being used more than ever to determine whom law enforcement officials target and punish. And ...
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From random security checks at airports to the use of risk assessment in sentencing, actuarial methods are being used more than ever to determine whom law enforcement officials target and punish. And with the exception of racial profiling on our highways and streets, most people favor these methods because they believe they are a more cost-effective way to fight crime. This book challenges this growing reliance on actuarial methods. These prediction tools, the author demonstrates, may in fact increase the overall amount of crime in society, depending on the relative responsiveness of the profiled populations to heightened security. They may also aggravate the difficulties that minorities already have obtaining work, education, and a better quality of life—thus perpetuating the pattern of criminal behavior. Ultimately, the author shows how the perceived success of actuarial methods has begun to distort our very conception of just punishment and to obscure alternate visions of social order. In place of the actuarial, he proposes instead a turn to randomization in punishment and policing, concluding that the presumption should be against prediction.Less

Against Prediction : Profiling, Policing, and Punishing in an Actuarial Age

Bernard E. Harcourt

Published in print: 2006-12-15

From random security checks at airports to the use of risk assessment in sentencing, actuarial methods are being used more than ever to determine whom law enforcement officials target and punish. And with the exception of racial profiling on our highways and streets, most people favor these methods because they believe they are a more cost-effective way to fight crime. This book challenges this growing reliance on actuarial methods. These prediction tools, the author demonstrates, may in fact increase the overall amount of crime in society, depending on the relative responsiveness of the profiled populations to heightened security. They may also aggravate the difficulties that minorities already have obtaining work, education, and a better quality of life—thus perpetuating the pattern of criminal behavior. Ultimately, the author shows how the perceived success of actuarial methods has begun to distort our very conception of just punishment and to obscure alternate visions of social order. In place of the actuarial, he proposes instead a turn to randomization in punishment and policing, concluding that the presumption should be against prediction.

This book offers a powerful new approach to one of the central issues in American constitutional thinking today: the problem of constitutional law's historicity, or the many ways in which ...
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This book offers a powerful new approach to one of the central issues in American constitutional thinking today: the problem of constitutional law's historicity, or the many ways in which constitutional arguments and outcomes are shaped both by historical circumstances and by the political goals and commitments of various actors, including judges. The presence of such influences is often considered highly problematic: if constitutional law is political and historical through and through, then what differentiates it from politics per se, and what gives it integrity and coherence? It argues that constitutional theory has as its (sometimes hidden) agenda the ambition of showing how constitutional law can escape from history and politics, while much constitutional history seeks to identify an historically true meaning of the constitutional text that, once uncovered, can serve as a corrective to subsequent deviations from that truth. Combining history and theory, the book analyzes a series of constitutional controversies from 1790 to 1944 to demonstrate that constitutional law from its very beginning has involved politically charged and ideologically divisive arguments. Nowhere in our past can one find the golden age of apolitical constitutional thinking that a great deal of contemporary scholarship seeks or presupposes. Viewed over time, American constitutional law is a history of political dispute couched in constitutional terms. The book then claims that it is precisely this historical tradition of argument that has given American constitutional law a remarkable coherence and integrity over time.Less

A Community Built on Words : The Constitution in History and Politics

H. Jefferson Powell

Published in print: 2002-09-15

This book offers a powerful new approach to one of the central issues in American constitutional thinking today: the problem of constitutional law's historicity, or the many ways in which constitutional arguments and outcomes are shaped both by historical circumstances and by the political goals and commitments of various actors, including judges. The presence of such influences is often considered highly problematic: if constitutional law is political and historical through and through, then what differentiates it from politics per se, and what gives it integrity and coherence? It argues that constitutional theory has as its (sometimes hidden) agenda the ambition of showing how constitutional law can escape from history and politics, while much constitutional history seeks to identify an historically true meaning of the constitutional text that, once uncovered, can serve as a corrective to subsequent deviations from that truth. Combining history and theory, the book analyzes a series of constitutional controversies from 1790 to 1944 to demonstrate that constitutional law from its very beginning has involved politically charged and ideologically divisive arguments. Nowhere in our past can one find the golden age of apolitical constitutional thinking that a great deal of contemporary scholarship seeks or presupposes. Viewed over time, American constitutional law is a history of political dispute couched in constitutional terms. The book then claims that it is precisely this historical tradition of argument that has given American constitutional law a remarkable coherence and integrity over time.

Confident Pluralism argues that we can and must live together peaceably in spite of deep and sometimes irresolvable differences over politics, religion, sexuality, and other important matters. We can ...
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Confident Pluralism argues that we can and must live together peaceably in spite of deep and sometimes irresolvable differences over politics, religion, sexuality, and other important matters. We can do so in two important ways. The first is by insisting upon constitutional commitments in three areas of the law: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The second way to pursue Confident Pluralism is by embodying its aspirations of tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (protests, strikes, and boycotts); and (3) our relationships across difference. Confident Pluralism suggests that when it comes to these civic practices, it is often better to tolerate than to protest, better to project humility than defensiveness, and better to wait patiently for the fruits of persuasion than to force the consequences of coercion. Confident Pluralism will not give us the American Dream. But it might help avoid the American NightmareLess

Confident Pluralism : Surviving and Thriving through Deep Difference

John D. Inazu

Published in print: 2016-05-12

Confident Pluralism argues that we can and must live together peaceably in spite of deep and sometimes irresolvable differences over politics, religion, sexuality, and other important matters. We can do so in two important ways. The first is by insisting upon constitutional commitments in three areas of the law: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The second way to pursue Confident Pluralism is by embodying its aspirations of tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (protests, strikes, and boycotts); and (3) our relationships across difference. Confident Pluralism suggests that when it comes to these civic practices, it is often better to tolerate than to protest, better to project humility than defensiveness, and better to wait patiently for the fruits of persuasion than to force the consequences of coercion. Confident Pluralism will not give us the American Dream. But it might help avoid the American Nightmare

While many recent observers have accused American judges—especially Supreme Court justices—of being too driven by politics and ideology, others have argued that judges are justified in using their ...
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While many recent observers have accused American judges—especially Supreme Court justices—of being too driven by politics and ideology, others have argued that judges are justified in using their positions to advance personal views. Advocating a different approach—one that eschews ideology but still values personal perspective—this book makes a case for the centrality of individual conscience in constitutional decision making. The book argues that almost every controversial decision has more than one constitutionally defensible resolution. In such cases, it goes on to contend, the language and ideals of the Constitution require judges to decide in good faith, exercising what he calls the constitutional virtues: candor, intellectual honesty, humility about the limits of constitutional adjudication, and willingness to admit that they do not have all the answers. The book concludes that the need for these qualities in judges—as well as in lawyers and citizens—is implicit in our constitutional practices, and that, without them, judicial review would forfeit both its own integrity and the credibility of the courts themselves.Less

Constitutional Conscience : The Moral Dimension of Judicial Decision

H. Jefferson Powell

Published in print: 2008-06-01

While many recent observers have accused American judges—especially Supreme Court justices—of being too driven by politics and ideology, others have argued that judges are justified in using their positions to advance personal views. Advocating a different approach—one that eschews ideology but still values personal perspective—this book makes a case for the centrality of individual conscience in constitutional decision making. The book argues that almost every controversial decision has more than one constitutionally defensible resolution. In such cases, it goes on to contend, the language and ideals of the Constitution require judges to decide in good faith, exercising what he calls the constitutional virtues: candor, intellectual honesty, humility about the limits of constitutional adjudication, and willingness to admit that they do not have all the answers. The book concludes that the need for these qualities in judges—as well as in lawyers and citizens—is implicit in our constitutional practices, and that, without them, judicial review would forfeit both its own integrity and the credibility of the courts themselves.

This book makes a case for reversing the rapid decline of the trial before we lose one of our public culture's greatest achievements. As a practice that is adapted for modern times yet rooted in ...
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This book makes a case for reversing the rapid decline of the trial before we lose one of our public culture's greatest achievements. As a practice that is adapted for modern times yet rooted in ancient wisdom, the trial is uniquely suited to balance the tensions—between idealism and realism, experts and citizens, contextual judgment and reliance on rules—that define American culture. Arguing that many observers make a grave mistake by taking a complacent or even positive view of the trial's demise, the author concludes by laying out the catastrophic consequences of losing an institution that so perfectly embodies democratic governance.Less

The Death of the American Trial

Robert P. Burns

Published in print: 2009-04-15

This book makes a case for reversing the rapid decline of the trial before we lose one of our public culture's greatest achievements. As a practice that is adapted for modern times yet rooted in ancient wisdom, the trial is uniquely suited to balance the tensions—between idealism and realism, experts and citizens, contextual judgment and reliance on rules—that define American culture. Arguing that many observers make a grave mistake by taking a complacent or even positive view of the trial's demise, the author concludes by laying out the catastrophic consequences of losing an institution that so perfectly embodies democratic governance.

This book attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of ...
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This book attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of constitutional law from a single foundational idea. The book finds that in the end no single, all-encompassing theory can successfully guide judges or provide definitive or even sensible answers to every constitutional question. This book reveals how problematic foundationalism is and shows how the pragmatic, multifaceted common law methods already used by the Court provide a far better means of reaching sound decisions and controlling judicial discretion than do any of the grand theories.Less

Daniel A. FarberSuzanna Sherry

Published in print: 2002-05-02

This book attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of constitutional law from a single foundational idea. The book finds that in the end no single, all-encompassing theory can successfully guide judges or provide definitive or even sensible answers to every constitutional question. This book reveals how problematic foundationalism is and shows how the pragmatic, multifaceted common law methods already used by the Court provide a far better means of reaching sound decisions and controlling judicial discretion than do any of the grand theories.

From the 1798 Sedition Act to the war on terror, numerous presidents, members of Congress, Supreme Court justices, and local officials have endorsed the silencing of free expression. If the ...
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From the 1798 Sedition Act to the war on terror, numerous presidents, members of Congress, Supreme Court justices, and local officials have endorsed the silencing of free expression. If the connection between democracy and the freedom of speech is such a vital one, why would so many governmental leaders seek to quiet their citizens? This book traces two rival traditions in American culture—suppression of speech and dissent as a form of speech—to provide an unparalleled overview of the law, history, and politics of individual rights in the United States. Charting the course of free expression alongside the nation's political evolution, from the birth of the Constitution to the quagmire of the Vietnam War, this book argues that our level of freedom is determined not only by the Supreme Court, but also by cultural, social, and economic forces. Along the way, it pinpoints the struggles of excluded groups—women, African Americans, and laborers—to participate in democratic government as pivotal to the development of free expression.Less

Free Expression and Democracy in America : A History

Stephen M. Feldman

Published in print: 2008-10-01

From the 1798 Sedition Act to the war on terror, numerous presidents, members of Congress, Supreme Court justices, and local officials have endorsed the silencing of free expression. If the connection between democracy and the freedom of speech is such a vital one, why would so many governmental leaders seek to quiet their citizens? This book traces two rival traditions in American culture—suppression of speech and dissent as a form of speech—to provide an unparalleled overview of the law, history, and politics of individual rights in the United States. Charting the course of free expression alongside the nation's political evolution, from the birth of the Constitution to the quagmire of the Vietnam War, this book argues that our level of freedom is determined not only by the Supreme Court, but also by cultural, social, and economic forces. Along the way, it pinpoints the struggles of excluded groups—women, African Americans, and laborers—to participate in democratic government as pivotal to the development of free expression.

The gay rights question asks whether the second-class legal status of gay people should be changed. This book shows the powerful legal and moral case for gay equality, but argues that courts cannot ...
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The gay rights question asks whether the second-class legal status of gay people should be changed. This book shows the powerful legal and moral case for gay equality, but argues that courts cannot and should not impose it. This book offers an unusually nuanced analysis of the most pressing gay rights issues. Does antigay discrimination violate the Constitution? Is there any sound moral objection to homosexual conduct? Are such objections the moral and constitutional equivalent of racism? Must state laws recognizing same-sex unions be given effect in other states? Should courts take account of popular resistance to gay equality? The book sheds new light on all these questions. Sure to upset purists on either side of the debate, this book criticizes the legal arguments advanced both for and against gay rights. Just as important, it places these arguments in broader moral and social contexts, offering original, pragmatic, and workable legal solutions.Less

The Gay Rights Question in Contemporary American Law

Andrew Koppelman

Published in print: 2002-07-01

The gay rights question asks whether the second-class legal status of gay people should be changed. This book shows the powerful legal and moral case for gay equality, but argues that courts cannot and should not impose it. This book offers an unusually nuanced analysis of the most pressing gay rights issues. Does antigay discrimination violate the Constitution? Is there any sound moral objection to homosexual conduct? Are such objections the moral and constitutional equivalent of racism? Must state laws recognizing same-sex unions be given effect in other states? Should courts take account of popular resistance to gay equality? The book sheds new light on all these questions. Sure to upset purists on either side of the debate, this book criticizes the legal arguments advanced both for and against gay rights. Just as important, it places these arguments in broader moral and social contexts, offering original, pragmatic, and workable legal solutions.

In Kelo v. City of New London (2005), the Supreme Court ruled that government can take private property and give it to another private owner in order to promote “economic development,” even though ...
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In Kelo v. City of New London (2005), the Supreme Court ruled that government can take private property and give it to another private owner in order to promote “economic development,” even though the Fifth Amendment only allows condemnations that are for a “public use.” The ruling was a grave error. Both originalist and most “living constitution” theories of constitutional interpretation lead to the conclusion that economic development and the closely related “blight” condemnations are not permissible public uses. Economic development and blight condemnations also inflict great harm, often destroying far more economic value than they create. The people the New London takings victimized had little political power, while the influential Pfizer Corporation hoped to benefit from the takings and played an important role in pushing them through. The city’s poorly conceived development plan failed, and the condemned land lies empty and unused to this day. The Kelo decision triggered a massive and unprecedented political backlash, with 45 states enacting eminent domain reform legislation in response. Despite its flaws, the Kelo decision has led to some genuine progress. The closely divided, 5-4, ruling shattered what many believed to be a consensus supporting the view that virtually any taking qualifies as a “public use.” The Supreme Court may well overrule or limit Kelo in the future. And the political backlash led to the enactment of meaningful reforms in a number of states. Future success in curbing eminent domain abuse will require a combination of both legal and political action.Less

The Grasping Hand : "Kelo v. City of New London" and the Limits of Eminent Domain

Ilya Somin

Published in print: 2015-05-28

In Kelo v. City of New London (2005), the Supreme Court ruled that government can take private property and give it to another private owner in order to promote “economic development,” even though the Fifth Amendment only allows condemnations that are for a “public use.” The ruling was a grave error. Both originalist and most “living constitution” theories of constitutional interpretation lead to the conclusion that economic development and the closely related “blight” condemnations are not permissible public uses. Economic development and blight condemnations also inflict great harm, often destroying far more economic value than they create. The people the New London takings victimized had little political power, while the influential Pfizer Corporation hoped to benefit from the takings and played an important role in pushing them through. The city’s poorly conceived development plan failed, and the condemned land lies empty and unused to this day. The Kelo decision triggered a massive and unprecedented political backlash, with 45 states enacting eminent domain reform legislation in response. Despite its flaws, the Kelo decision has led to some genuine progress. The closely divided, 5-4, ruling shattered what many believed to be a consensus supporting the view that virtually any taking qualifies as a “public use.” The Supreme Court may well overrule or limit Kelo in the future. And the political backlash led to the enactment of meaningful reforms in a number of states. Future success in curbing eminent domain abuse will require a combination of both legal and political action.

For centuries, the writ of habeas corpus has served as an important safeguard against miscarriages of justice, and today it remains at the center of some of the most contentious issues of our ...
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For centuries, the writ of habeas corpus has served as an important safeguard against miscarriages of justice, and today it remains at the center of some of the most contentious issues of our time—among them terrorism, immigration, crime, and the death penalty. Yet, in recent decades, habeas has been seriously abused. This book argues that habeas should be exercised with greater prudence. Through historical, empirical, and legal analysis, as well as illustrative case studies, the authors examine the current use of the writ in the United States and offer reform proposals to help ensure its ongoing vitality in today's justice system.Less

Habeas for the Twenty-First Century : Uses, Abuses, and the Future of the Great Writ

Nancy J. KingJoseph L. Hoffmann

Published in print: 2011-04-30

For centuries, the writ of habeas corpus has served as an important safeguard against miscarriages of justice, and today it remains at the center of some of the most contentious issues of our time—among them terrorism, immigration, crime, and the death penalty. Yet, in recent decades, habeas has been seriously abused. This book argues that habeas should be exercised with greater prudence. Through historical, empirical, and legal analysis, as well as illustrative case studies, the authors examine the current use of the writ in the United States and offer reform proposals to help ensure its ongoing vitality in today's justice system.

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